Senate OKs CDA II, gambling bill

Senators approve the first legislation restricting content on the Internet since portions of the CDA were ruled unconstitutional.

July 23, 19984:05 PM PDT

The Senate today approved the first legislation restricting content on the Internet since portions of the Communications Decency Act were ruled unconstitutional by the Supreme Court last summer.

Senators unanimously passed a major spending bill with controversial amendments--one of which is known as the CDA II--that would make it a crime for Web sites to distribute "harmful" material to children. Another provision would require most schools and libraries to filter federally funded Net access, and the last bans most forms of Net gambling.

However, the House has yet to vote on its own version of the spending legislation. The two chambers of Congress would have to resolve any differences before sending the bill to President Clinton.

Also today, the Senate voted overwhelmingly to restrict Internet gaming by tacking on Sen. Jon
Kyl's (R-Arizona) Internet Gambling Prohibition Act to the spending bill. Despite a report by the Justice Department that called Kyl's bill overly broad and subject to constitutional challenges, the Senate voted 90 to 10 to add the proposal as an amendment to the appropriations bill.

Today's Senate vote is reminiscent of the passage of the CDA, which made it a felony to send indecent material to minors over the Net and was buried in the massive Telecommunications Act of 1996. It also represents Congress's ongoing interest in assuring constituents that elected officials are not ignoring concerns about children's exposure to Net pornography and other adult-oriented material.

If President Clinton eventually signs the law, a lengthy court battle will likely ensue, meaning that children will be no more protected by Net content restriction laws than they were in 1996 when the CDA was enacted. That's why civil liberties groups argue that parents, not Congress, are best suited to control their children's access to objectionable material. Still, lawmakers believe that they should have a role in limiting unfettered entry to "adults-only" areas online.

Citing the Supreme Court's ruling that the CDA is vague and broadly infringed on adults' rights to free speech, rights advocates said they will fight to overturn the Internet amendments to the spending bill if they are signed into law.

"Congress [and state lawmakers] have put their stamp on many Internet censorship bills that the courts have later determined to be unconstitutional. Today will be no exception," said Emily Whitfield, a spokeswoman for the American Civil Liberties
Union, which filed the initial lawsuit challenging the CDA.

The Coats amendment prohibits "commercial" Web sites from allowing underage surfers to view adult-oriented material deemed "harmful to minors." It would apply to any communication, image, or writing that contains nudity, actual, or simulated sex, or "lacks serious literary, artistic, political, or scientific" value. Violators could be fined up to $50,000 and imprisoned for six months.

"Children can move from Web page to Web page, viewing and downloading free images with no restrictions," Coats said in a previous statement. "My legislation requires the commercial distributor to remove the free images or require a credit card or PIN number in order to view them."

Also a part of the spending bill is a measure by Sen. John McCain (R-Arizona) requiring public schools and libraries that get federal discounts on Net access install software on their computers to filter out material that is "inappropriate for minors."

Mirroring their arguments against the CDA, civil liberties groups oppose the Coats and McCain bills on grounds that they violate free speech. The law could have applied to Web sites, chat rooms, or email and involved anything from safe sex information to works of art and literature.

"Coats tried to make his legislation more narrow, and I don't have any doubt that it will be litigated as the CDA was," Marc Rotenberg, executive director of Electronic Privacy Information
Center, said today. "Any effort to restrict publication of content is on its face a First Amendment problem."

The ACLU's Whitfield added: "There is a lot of socially valuable
information online for younger people, and the Coats and McCain bills don't take that into account."

Free-speech advocates are worried that the House also will pass the Net content restrictions.

"We had expected that there would be some debate on the Senate floor about both measures, and there had been an agreement to do that," Rotenberg added. "Given what happened on the Senate floor, I'm a little less confident that it will be possible to make changes in the House."

The Senate bill contained other Internet content regulation, including restrictions on online gambling. The Kyl amendment adopted today slaps new criminal penalties on Net users who place bets.

The provision would include the Internet under the existing law prohibiting the use of any wire communication for accepting interstate or foreign wagers, which the DOJ estimates was a $600 million industry last year.

With just one roll of the dice, Net users could face up to a $500 fine and three months in prison. Cybercasino operators would face up to $20,000 in fines and up to four years in prison.

"Internet gambling is unregulated, accessible by minors, addictive, subject to abuse for fraudulent purposes like money laundering, evasive of state gambling laws, and already illegal at the federal level in many cases," Kyl said today in a statement.

As previously reported, the Kyl amendment does carve out exceptions for horse racing and state lotteries that are available online, but only residents in those states could participate.

In addition, the Senate unanimously approved Sen. Richard Bryan's (D-Nevada) proposal to allow online fantasy sports leagues, under the condition that participation fees are not used to pay off bets on fantasy games.

But lawmakers rejected a proposal by Sen. Larry Craig (R-Idaho) to allow Net casinos based on Native American reservations. Craig's state is home to the Coeur d'Alene reservation, which hosts the U.S. Lottery site.

Law enforcement agents say the updated 1961 wire act could help them go after Net wager houses that misrepresent odds, take bets from territories where the practice is illegal, or fail to pay winners. The Justice Department already has cracked down on some cybercasinos.

But opponents of the Kyl proposal say Net gambling should be regulated, not prohibited. Groups such as the Interactive Services Association and the 35-member Interactive Gaming Council contend that
the federal government can't control the global industry and should instead set up rules to govern the activity.